Theft of Trade Secrets Brings Federal Conviction

By Professors Jeffery Atik and Karl Manheim

Stealing a trade secret (reprehensible though this may be) has generally not attracted federal criminal liability. Yet in the recent prosecution of David Nosal, the Justice Department applied a computer hacking statute to convict a departing employee for a rather run-of-the-mill trade secret theft: the unauthorized taking of customer lists. Many if not most trade secrets -- like the customer lists involved in Nosal -- are stored on computers. As such, aggressive use of the federal Computer Fraud and Abuse Act could convert many trade secret misappropriations -- traditionally civil offenses and a state law matter - into federal crimes. And this policy shift -- criminalizing and federalizing -- results from the determinations of prosecutors and judges, and not from Congress.

David Nosal worked for the executive search firm Korn/Ferry International until 2004 when he left to form a rival firm. Upon departure, he signed a standard non-compete agreement, but also recruited 3 fellow Korn/Ferry employees to join his new firm. Before those employees left, they downloaded proprietary customer information from the Korn/Ferry network and provided the confidential data to Nosal.

The Justice Department charged Nosal with 22 counts under the Computer Fraud and Abuse Act, 18 U.S.C. §1030, which prohibits, inter alia, unauthorized access to computer systems for fraudulent purposes. The fraudulent purpose in this case was theft of trade secrets.

It's About Time: Cameras in Federal Courts are Long Overdue

By Professor Laurie Levenson

Federal judges in the Northern District of California have applied to be part of a pilot project that would allow cameras in federal, civil cases. It is a proposal that is long overdue. The public has a right to see what happens in our courtrooms. It would be far better for the public to see what really happens in a federal court than to believe that our courtrooms operate like the courtrooms they see on television. Federal judges are not "Judge Judy." The issues they deal with are incredibly important, such as the right to same-sex marriage, civil rights cases and class action lawsuits. We have done a great disservice to the public by dragging our heels on cameras in the courtroom and the judges should be applauded for being willing to move into the 21st Century on this issue.

Some judges have been reluctant to allow cameras in the courtroom because they fear that the cameras will change the atmosphere in the courtroom. There is no reason for that to happen. Judges have the power to control the conduct of those appearing before the court. From my experience as a former federal prosecutor, one quick glance by a judge is more than enough to bring lawyers back into line. Moreover, with today's technology, there is no reason that the camera even has to be noticeable in the courtroom. Pinpoint cameras, no larger than the size of a pen, can capture what is happening in the courtroom. These cameras will be no more distracting (and probably less so) than a courtroom artist or reporter sitting in the courtroom.

Finally, we need to recognize this proposal for what it is -- only a baby step toward allowing cameras in the courtroom. The current proposal would only allow cameras in civil cases where the parties and judge agree. Sensational criminal cases are not at issue. We need not worry that cameras will affect a criminal defendants' right to a fair trial. The proposal for cameras in federal criminal cases is not yet on the table.

Perhaps what is most remarkable about the current effort is that it is being spearheaded by the trial judges. The United States Supreme Court, which decides the most momentous cases in our country, still remains closed to the idea. Hopefully, successful efforts in the lower courts will convince the Justices that the time has come for the country to see how our highest court works as well. Whether it is Bush v. Gore or a major terrorism case, the public wants to know how the Court operates. A small television camera can at least give them a glimpse into the process.